Homeowner and tree surgeon not liable for trains damaged by fallen tree

Jason Evans-Tovey successfully defends a tree surgeon in a case which dispels some myths and gives modern guidance on the obligations of homeowners in relation to trees and the limits of duties owed by tree surgeons.

A stem of an Ash tree fell onto railway tracks from the garden of a domestic property and the train operator sued the homeowner and a tree surgeon she had engaged for the costs of repairing train carriages which struck part of the stem and consequential losses. The Ash had looked healthy and strong, but in fact it had been suffering for many years from a defect (viz. a crack in a fork) together with significant decay in an open wound at the base of the trunk, both of which had been covered and masked by substantial amounts of ivy. The homeowner had not conducted a close-up inspection of the ash and the tree surgeon had not been instructed to inspect or assess the health of the ash. The Judge held neither had been negligent.

The judge accepted the argument that ordinarily a reasonable and prudent landowner could discharge his or her duty by carrying out a preliminary informal inspection or observations on a regular basis and that as a general rule a close formal inspection was not warranted unless the informal inspection or observations over time revealed a potential problem. The judge rejected the argument that all homeowners without particular expertise need as a matter of course to instruct an aboriculturalist or other suitable specialist frequently to carry out inspections of trees on his or her land and held that Caminer v Northern Investment Trust Ltd[1951] AC 88 did not decide to the contrary.

The judge also held that a tree surgeon engaged to undertake specific but ordinary work on a tree (such as cleaning out the crown and removing deadwood) was not ordinarily under a duty to inspect and advise or warn about the state of that tree and was under no duty to a third party to protect against future injury or property damage which might be caused by that tree.